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HomeMy WebLinkAboutWinter Springs Holdings, Inc. Mardi Gras Temporary License AgreementMARDI GRAS TEMPORARY LICENSE AGREEMENT THIS MARDI GRAS TEMPORARY LICENSE AGREEMENT ("Agreement"} is made and entered into as of the ~ day of March, 2009 ("Effective Date"), by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("Licensee"), and WINTER SPRINGS HOLDINGS, INC:, a Delaware corporation qualified to do business in Florida ("Owner"). WITNESSETH: WHEREAS, Licensee will be co-sponsoring a Mardi Gras special event ("the Event")March 13th through 15th, 2009 for the benefit of the community which will include a parade, music, food and fireworks at the Winter Springs Town Center, generally located on the corner of State Road 434 and Tuskawilla Road in the City of Winter Springs; and WHEREAS, Licensee is in need of additional space in the vicinity of the Winter Springs Town Center for food concessions, midway games and passive attractions; and WHEREAS, Owner owns certain unimproved real property within the Town Center, more specifically located to the North of the McDonald's restaurant on the northeast corner of State Road 434 and Tuskawilla Road, directly across Tuskawilla Road from the Winter Springs Town Center (the "Property"); and WHEREAS, Owner desires to permit Licensee to use the Property for the sole purpose of placing the food concessions, midway games and passive attractions listed in Exhibit "A" hereto on the Property during the Event; and NOW, THEREFORE, inconsideration of mutual covenants and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals and Exhibits. The forgoing recitals are hereby incorporated in the terms of this Agreement by reference as if fully set forth in this paragraph. All exhibits to this Agreement are hereby incorporated in to the terms of this Agreement by reference as if fully set forth in this paragraph. 2. Duration of License Agreement. This Agreement shall become effective on Friday, March 13, 2009 at 9:00 AM, and continue in full force thereafter until Monday, March 16, 2009 at 12:00 PM. MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc. Page I of 7 3. Termination of License Agreement. This Agreement shall terminate and Licensee's rights shall automatically cease upon the expiration of the duration ofthis Agreement as set forth in paragraph 2, or at such time during the term as the Property is utilized for any purpose other than set forth in Exhibit "A". 4. Pro er .The real property subj ect to the terms and conditions ofthis Agreement is a portion of that property identified by the Seminole County Property Appraiser as Parcel Identification Number 26-20-30-SAR-OA00-006 C, more particularly depicted as the area outlined in Exhibit "B," attached hereto and incorporated herein by this reference ("Property"). The parties acknowledge, however, a legal description does not exist for the outlined area depicted on Exhibit "B." As such, the outlined area shall represent a good faith approximate location for Licensee to provide the activities authorized by this Agreement. The parties acknowledge that without an exact boundary established, the Event may slightly spill over beyond the boundaries of the outlined area during the Event. Regardless of any encroachment on the surrounding land, any use of the Owner's Property or adjacent land shall be subject to the terms ofthis Agreement. The Licensee shall use its best efforts to prevent any encroachment on the surrounding land of any activities or uses associated with the Event. 5. Restoration of Property. Upon termination of this Agreement, Licensee shall leave the Property in substantially good condition and restore it to its condition immediately preceding this Agreement, excepting reasonable wear and tear from the use herein permitted. Licensee shall be responsible for pick-up and removing any litter and trash on the Property caused by Licensee and its guests and invitees attending the Event. The litter and trash will be removed within forty-eight (48) hours of the termination ofthis Agreement. If Licensee fails to remove the trash and litter within said time period, Owner may, but is not required to, cause the trash and litter to be removed and the Licensee will reimburse Owner the reasonable cost for said removal. Under no circumstances shall Owner be subject to, or liable for, any code violations that may be caused by the Licensee's use of the Property, including but not limited to any trash and litter that maybe on the Property as a result of such use. 6. Reservation of Rights. Owner reserves the right to use the Property for any and all purposes that do not unreasonably interfere with the use of the Property permitted hereunder, including without limitation, the right to grant easements on, over, across or under the Property. Security Deposit. No security deposit shall be required from the Licensee. 8. Use of the Property. Licensee and its guests and invitees of the Event shall be permitted to use the Property during the duration ofthis Agreement only for those uses outlined in Exhibit "A". Licensee's use of the Property shall include reasonable ingress and egress rights to said Property. No alcoholic beverages shall be served or sold on the Property, nor shall any activities involving fireworks, rides (other than as specifically stated in Exhibit "A"), gunpowder or MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc. Page 2 of 7 ammunition of any kind, including ball bearings, be permitted on the Property. 9. Responsibilities. Licensee shall be responsible for any and all damage to the Owner's Property or code or regulatory violations caused by its use ofthe Property, which damage or violation is caused by Licensee, its agents, invitees, licensees and guests, and provided that such damage or violation is not the result of the willful act or negligence of Owner. Licensee shall not allow, permit or suffer any unlawful or illegal activity by its employees, agents, contractors, guests or invitees, nor create any nuisance on the Property. 10. Condition of the Property. Licensee accepts the Property "as-is".Owner shall not be required, and Licensee shall not be permitted, to make any alterations or improvements to the Property. 11. Licenses and Permits; Compliance with Laws. Licensee, at its sole cost and expense, shall obtain any and all necessary permits or licenses required for its use ofthe Property and shall confirm that any activity by its employees, agents, contractors, guests or invitees is properly permitted and authorized by any applicable governmental agency. In addition, Licensee, its employees, agents, contractors, guests or invitees shall use the Property in a safe and appropriate manner and in accordance with all applicable governmental requirements and applicable industry safety standards. 12. Insurance. Licensee will provide and maintain or cause to be provided and maintained, at no expense to Owner a special, single event endorsement to the Licensee's insurance policy that is issued in the name of Winter Springs Holdings, Inc. and that encompasses the subject matter ofthis Agreement in the following amounts and in a form acceptable to Owner: I. Comprehensive general liability insurance in the amount of $10,000,000.00 including contractual liability and liability for bodily injury or property damage with a combined single limit of not less than $2,000,000.00 for each occurrence. II. Product liability insurance in the amount of $1,000,000.00. III. Automobile liability insurance including all owned, non-owned, and hired vehicles used in conjunction with the Event for bodily injury or property damage with combined single limit of not less than $500,000 each occurrence. IV. Personal and advertising injury coverage in the amount of $1,000,000.00. V. Coverage for damage to rented properi}~ in the amount of $50,000.00 MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc, Page 3 of 7 All policies shall be specifically endorsed to provide that the coverages obtained by virtue of this Agreement will be primary and that any insurance carried by Owner shall be excess and non- contributory, Licensee shall furnish Owner with a copy of the certificate of such insurance policy by March 13, 2009. 13. Interest Created. This Agreement is a license and shall not create any easement right, leasehold interest or other interest in land. The rights and obligations of Licensee in and to the Property created hereunder shall not be subject to levy, sale, assignment or subletting, without the prior written consent of the Owner, which consent shall not be unreasonably withheld, conditioned or delayed. 14. Securi Licensee acknowledges that Owner shall not be responsible for the persona! safety of the users on or about the Property, or for any damage to or theft to the uses located on or about the Property, and Licensee shall advise the users that their use of the Property is at their awn risk. 15. Indemnity. To the extent permitted by law, Licensee shall indemnify and hold harmless Owner from and against every demand, claim, cause of action, judgment and expense, including reasonable attorney's fees, and all loss and damage arising from any injury (including death) or damage to the person or property of the Owner or to the person or property of the Owner's agents, servants, employees, guests, invitees, or to any other person or property on the Property where the injury or damage is caused by any act or omission of Licensee, its agents, invitees, guests, servants or employees, or of any other person entering upon the Property for the express or implied purpose of conducting or participating in the Event. 16. Governine Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 17. Non-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 18. Non-Recordation. This Agreement will not be recorded in the public records of Seminole County, Florida. 19. Modifications. This Agreement and any Exhibits hereto may be modified only by a written instrument, which is executed with the same formality as this original agreement. MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs !Winter Springs Holdings, Inc. Page 4 of 7 20. Headings. Headings are for the convenience of the parties and are not to be construed as part of this Agreement. 21. Severability. In the event any portion of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the remaining provisions shall be valid and enforceable. 22. Entire Agreement. This Agreement and the Exhibits attached hereto, constitute the entire agreement between Licensee and Owner with respect to the license specified and all previous representations relative thereto, either written or oral, are hereby annulled and superseded. 23. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of Licensee's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on Licensee's potential liability under state or federal law. As such, Licencee shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, Licensee shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 24. Attorney's Fees. In the event that either of the parties hereto shall institute litigation or other legal proceedings against the other to interpret or enforce any term, provision, warranty, covenant or condition set forth in this Agreement, the prevailing party in such litigation or other legal proceedings following all appeals therefrom, if any, shall be entitled to recover from the non-prevailing party in such litigation or other legal proceedings reasonable attorneys' and paralegals' fees and expenses and court costs incidental thereto, including those incurred on any appeal of a lower court decision. 25. Assignment. No assignment of this Agreement is permitted by either party. 26. Authori I.. Licensee hereby represents, covenants and warrants to Owner, as of the Effective Date, that the execution and delivery of this Agreement by Licensee and the consummation by the Licensee of the transaction contemplated by this Agreement: (i) are within Licensee's capacity and all requisite action has been taken to make this Agreement valid and binding on Licensee in accordance with its terms; and (ii) does not and will not (a) result in a breach of or default under any indenture, agreement, instrument or obligation to which Licensee is a party and/or which affects all or any portion or the Property, or (b) constitute a violation of any governmental requirement. The MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, lnc. Page 5 of 7 person executing this Agreement on behalf of Licensee has been duly authorized to act on behalf of and to bind Licensee, and this Agreement represents a valid and binding obligation of Licensee. II. Owner hereby represents, covenants and warrants to Licensee, as of the Effective Date, that the execution and delivery of this Agreement by Owner and the consummation by the Owner of the transaction contemplated by this Agreement: (i) are within Owner's capacity and all requisite action has been taken to make this Agreement valid and binding on Owner in accordance with its terms; and (ii) does not and will not result in a breach of or default under any indenture, agreement, instrument or obligation to which Owner is a party and/or which affects all or any portion or the Property. The person executing this Agreement on behalf of Owner has been duly authorized to act on behalf of and to bind Owner, and this Agreement represents a valid and binding obligation of Owner. [EXECUTION PAGES FOLLOW) MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc. Page 6 of 7 IN W ITNF.SS WHEREOF the pertics have hereunto set their hands and seals on the dey first above written. ATfiEST: ~. An r orenzo-Luaces, Clry Clerk C[1Y S~AJ.,: . ~ .. LICENSEE: CITY OF WINTER~P,RlNGS, , a Florida municipal corporation. evla Smith, ' ty MxirgPer MARDI GRAS TEMPORARY LICENSE AGREEMENT City of 141ntcr Springs / W inter Springs Holdings, Ine. Psge 7 of 7 OWNER: WINTER SPRINGS HOLDINGS, INC., a Delaware corporation qualified to do business in Florida. By: ,-~ o. ~ ~~-~. Print Name: _~+r7+~c~~ ~t.~~ Title: ~!'~~~ r ~~f ~f"' ., , ~:, COUNTY OF ~~ STATE OF I HEREBY certify that the foregoing instrument was acknowledged. before me this ~ ,;'+._ rla., of ..; ~nno ~,,, t' c .~ __ .. of Winter Springs Holdings, Inc,, a Delaware corporation qualified to do business in Florida, I7 who is personally known to me, or ~ who has produced as identification. Notary Public ~' Print Name ~,.~~r My commission expires: JO ANiJ BOWEN NOTARY PUBLIC nisrR~cr or- coiur,~e~a ,.,~~.S~av ~a,zolo MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc. Page 8 of 7 Exhibit 11A" Passive Attractions 1. Midway Games 2. Food Concessions 3. Childrens Train 4. Merry Go Round MARDI GRAS TEMPORARY LICENSE AGREEMENT City of Winter Springs /Winter Springs Holdings, Inc. Page 9 of 7 Exhibit "B" The Property Seminole County Parcel Id: 26-20.30-SAR-OA00-006C As legally described in that Special Warranty Deed dated August 30, 2007 and recorded !n Seminole County Official Record Book 6816, Page 1069 EYhlDlt `~~" <-" `` ~.~